Complaints that are Vexatious, Frivolous or an Abuse of Process
When a complaint is made to the College about a registrant (member), the Inquiries, Complaints and Reports Committee (the “Committee”) has a number of options available to it. One option is to decide to take no action with respect to the complaint, if it believes the complaint is “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process”[1]. This blog examines when and how the Committee can dispose of a complaint on this basis.
How the Committee Proceeds
Upon receipt of a complaint, the Committee (with the assistance of College staff) can identify it as apparently frivolous, vexatious or an abuse of process. This will only occur if the complaint is clearly and obviously frivolous or vexatious, such as if the complaint alleges conduct that could not possibly have occurred. More typically, a complaint will only be identified as frivolous and vexatious because of the circumstances of the complaint or the complainant, and the registrant will need to identify these circumstances to provide the Committee with necessary context. In either case, if the Committee forms the opinion that a complaint appears to be frivolous, vexatious or an abuse of process, it will advise the complainant and the registrant that it intends to take no action with respect to the complaint on this basis, and that the parties can provide their submissions with respect to the Committee’s position. After considering the parties’ submissions, the Committee will either take no action or proceed with the investigation of the complaint in the normal course.
What is Considered Frivolous, Vexatious, Bad Faith, Moot or an Abuse of Process?
The Supreme Court of Canada set out two factors that constitute an abuse of process in R v. Scott:[2]
proceedings are oppressive or vexatious; and
violate the fundamental principles of justice underlying the community’s sense of fair play and decency.
A legal proceeding is considered frivolous and vexatious if it is repetitive, cannot succeed, or would lead to no possible good. [3]
To examine this test, we will look at two cases before the Health Professions Appeal and Review Board (HPARB) that resulted in two different dispositions (one confirmed the Committee’s decision and the other sent the matter back to the Committee for reconsideration).
In Marion v Bobb-Semple [4], the Respondent nurse worked for an insurance company, reviewing claims for insurance benefits and was involved in reviewing the Applicant’s claim for benefits following a motor vehicle accident. The insurer ultimately took the position that the Applicant did not suffer restrictions and limitations as a result of the motor vehicle accident. The Applicant complained that the Respondent diagnosed her when it was not within her scope of responsibilities to do so. The Committee took no action on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. The complaint related to a dispute over a disability claim which is outside the College’s jurisdiction. Additionally, the complaint did not reflect a breach of the nursing standards or professional misconduct issues which would require the Committee’s investigation.
HPARB considered whether the Committee’s determination was reasonable. It found that the complaint was an abuse of process and that it would be an improper use of the Committee’s complaint and investigation process to make the Applicant’s complaint the subject of an investigation. HPARB confirmed the Committee’s decision to take no action on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise and abuse of process.[5]
In S.B. v H.M. [6], the Committee of the College of Physicians and Surgeons of Ontario took the preliminary position that it would not investigate a complaint about a physician’s advertising practices or take further action because the Applicant had brought numerous unmeritorious complaints of a similar nature against other physicians. It considered the complaint to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. Viewed in isolation, however, the Committee acknowledged that the Respondent’s advertising contravened the Advertising Regulation [7], particularly with respect to the use of before and after pictures. But because the Applicant had initiated many complaints against other members, which represents an abuse of process, the Committee took no action.
Before HPARB, the Applicant argued that despite his similar complaints, his complaint in this case was substantive and by taking no action, the College was permitting the physician to continue placing advertisements that contravene the advertising regulations.
HPARB stated that the Committee’s mandate is to investigate conduct and actions of the member complained about. The legislation does not oblige the Committee to investigate the conduct and actions of the complainant, which it found the Committee did in this case. Although the Applicant pursued many claims of a similar nature, it was not enough to consider this complaint an abuse of process when it was substantive, which the Committee acknowledged. HPARB sent the matter back to the Committee to conduct a further and adequate investigation, reconsider the matter and issue a further decision.
Lessons Learned
There is no quick and simple rule for determining whether complaints are frivolous, vexatious or an abuse of process. For example, multiple complaints against numerous professionals or multiple complaints against the same professional, do not in itself constitute a frivolous or vexatious complaint. Making this determination depends on the facts of the complaint and whether the complaint has substantive merit.
Health professionals who receive a complaint that a Committee may consider frivolous, vexatious, moot or an abuse of process will have an opportunity to respond to the Committee’s preliminary opinion. If you receive a complaint or wish to make submissions about a complaint being frivolous or vexatious, we encourage you to seek legal support in doing so.
[1] Health Professions Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991, s 26 (4).
[2] 1990 CanLII 27 (SCC), 3 SCR 979.
[3] Foy v Foy, (1979), 102 DLR (3d) 342 (Ont CA).
[4] 2021 CanLII 111715 (ON HPARB).
[5] Pursuant to section 26(5) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991.
[6] 2021 CanLII 22046 (ON HPARB).
[7] O Reg 114/94 under the Medicine Act, 1991 ss 5-9.